Case Update (2020): In re MVU; Hague Abduction Convention and Article 13(b) grave risk due to domestic violence towards the taking parent

In the recent case of In re MVU, the Appellate Court of Illinois affirmed an order refusing return of a minor child to its habitual residence of Mexico because that would present a grave risk of harm to the child based on the father's domestic violence of the mother.  

The court in opining on the grave risk acknowledged that most jurisprudence on the Hague Abduction Convention arises from federal courts.  This particular case was brought in a state court where there was a parentage case pending over the same child (which was stayed when this Hague Abduction return petition was filed).  At trial, the taking-parent mother, presented evidence about several situations she argued formed the basis of a grave risk of harm to returning the child.  The situations included: an altercation where she says the father choked her while she was holding the child; another where the father threatened her that if she took the child, he would kill her; and another where the father would refuse to allow her to work outside of the house and restricted her personal liberties.  The trial court judge found the mother credible, and the father, who denied each allegation, not credible.  The mother also had several family members testify as to having heard the various arguments or witnessed certain events. 

The court cited one line in the Monasky v. Taglieri opinion when opining that domestic violence can present a grave risk of harm.  That line, found at page 729, says that Article 13(b) is a "mechanism for guarding children from the harms of domestic violence." The Appellate Court of Illinois acknowledged that different circuits have reached different conclusions as to domestic violence making out an exception, and pinpointed the argument that domestic violence towards the spouse can amount to a grave risk to the child.  The court elaborated on several statements from different circuits about this argument, and also cited to a federal register publication that stressed that Article 13(b) must show that any risk to the child is grave, not merely serious, and that the arguments presented to the court should not be intended to be used as a vehicle to litigate a child's best interests.  The court should look at whether there is a "sustained pattern of physical abuse and/or a propensity for violent abuse." (see Laguna v. Avila, No. 07-CV-5136 (ENV), 2008 WL 1986253). 

In this case, the court concluded that the father "demonstrated a pattern of escalating violence as well as a pattern of interference with [the mother's] personal liberty which, in turn, effected the psychological welfare of the child."  Even without a psychological expert, it was not error for the court to reach this conclusion.  

This specific court did not address an issue that frequently arises in arguments surrounding the grave risk exception. In some circuits, when a court concludes there is a grave risk of harm to a child if the child is returned, the court then looks to undertakings by the left-behind parent, enforceable in the habitual residence, that could nonetheless permit the child to be returned safely.  The case of Saada v. Golan which has been up and down the Second Circuit over the past year or two, is focused on this issue.  The Hague Conference's recently published Guide to Good Practice on Article 13(b) also focuses on this issue of "protective measures".  You can read the Guide here.  Protective measures are services that may exist, or be put in place, in the habitual residence, like access to legal services, domestic violence shelters, or health services.